BASANTA PANDEY Vs. SUDHIR LALL SEAL

JUDGEMENT

(1.) The two thika tenants, Basant Pandcy and Kanai Pandcy, sons of late Ishwar Pandey, have obtained this rule under Article 227 of the Constitution for setting aside an appellate order of affirmance, by which their eviction has been directed under Section 3, Clauses (iv) and (v), of the Calcutta Thika Tenancy Act, 2 of 1949. Clause (iv) makes a thika tenant liable to ejectment from his holding, inter alia, on the ground that the land is required by the landlord for the purpose of building. Likewise, Clause (v) makes a thika tenant liable to ejectment on the ground, amongst other things, that he has failed himself to occupy a major part of the holding for more than six consecutive months.

(2.) Mr. Ranjit Banerjee, appearing in support of the rule, does not press the point rounded on Clause (v). He does not, not because it lacks substance, as he says, but because it will be futile, in view of the findings of fact that all the essential ingredients to bring the case under Clause (v) are there: (i) means of the landlords, (ii) a plan of the building to be, and (iii) need of the landlords for building, -- findings, be concedes with his usual fairness, he cannot assail in an application under Article 227 of the Constitution. But he concludes, even such findings cannot take the landlords opposite party far, as the lis is bound to fail for an inherent and incurable defect: non-joinder of a necessary party, namely, Biswanath, son of Basanta Pandey, one of the two petitioners before me, as also non-issue of ejectment notice upon him, they all father, sou, uncle Kanai and others--constituting a family governed by the Mitakshara law. Such then is the only point : defect of parties : I have been called upon to decide.

(3.) The learned appellate tribunal is presented with this point Loo. But he dismisses it an the ground that nowhere in the written objection the two thika tenants, now the petitioners before me, qua opposite party in the trial forum, specify the name of Biswanath as a necessary party, denying thereby an opportunity to the landlords, the petitioners there and the opposite party here, to meet such case at the trial. All they do is to indulge in "liquid" averments that the lis is bad for non-joinder of necessary parties, or that the notice of ejectment is bad at law, served as it has not been to "all representing the estate of the original thika tenant, late Iswar Pandey. The learned tribunal of appeal, therefore, concludes that a vague pleading as this is no pleading, and beneath its notice too.